In my previous posting I mentioned that the RK&K Consultants misrepresented some of the FHWA role in approval of project alternatives based on impacts on historic properties. This critique adds additional concerns about the adequacy of the project development as it relates to historic properties, and to some of the relationships of the National Environmental Policy Act (NEPA) in this project.
I encourage you to provide me any constructive feedback you believe will add to this discussion as a comment to this posting. Here are my thoughts and analyses for your consideration. Entries in italics in the letter are added by me.
Federal Highway Administration
400 North 8th Street, Room 750
Richmond Virginia 23219-4825
U.S. Route 250 Bypass Interchange
Response to VDHR's December 9, 2007 letter
City of Charlottesville, Virginia
February 15, 2008
Mr. Marc Holma, Architectural Historian
Office of Review and Compliance
Virginia Department of Historic Resources
2801 Kensington Avenue
Richmond, VA 23221
Dear Mr. Holma:
The Federal Highway Administration (FHWA) is in receipt of a copy of your December 9, 2007, letter [Note: Letter actually dated December 7, 2007] to Ms. Angela Tucker of the City of Charlottesville regarding the subject undertaking. In your letter, you raise an issue that requires a response from FHWA, the lead federal agency. In particular, you state, "Another issue brought up by the Department of Historic Resources in our letter [Note: Sent by Mark Holma to Ms. Angela Tucker on October 30, 2007] and at the consulting parties meeting [Note: meeting date is November 26, 2007] is the potential for cumulative effects to historic properties resulting from the subject interchange project and the proposed McIntire Road Extension. As previously stated in our 30 October letter, the regulations that govern Section 106, 36 CFR Part 800, consider it appropriate to evaluate the effects of these two undertakings jointly since one may be interpreted as a reasonable consequence of the other (36 CFR Part 800.5(a)(l)) [See NOTE 1 below for text]. This is true even if the road project is state funded rather than federally funded. Therefore we still believe it necessary to include the McIntire Road Extension project in the overall area of potential effect and assess the impacts to historic properties, particularly McIntire Park, of that project along with the bypass."
This is not the first time that VDHR has made reference to 36 CFR Part 800.5(a)(1) in its comments on projects to support its position and in particular, its position on the scope of the undertaking subject to Section 106. Likewise, this is not the first time that FHWA has commented on VDHR's reference. As we have stated before, FHWA and its Federal Preservation Officer [see NOTE 2 below] believe that using this reference to expand the scope of the undertaking subject to Section 106 that had been previously defined by the lead federal agency in accordance with NEPA is an inappropriate application of 36 CFR Part 800.5(a)(1). The context of the Section 106 regulations in which this reference occurs is titled, "assessment of adverse effects". This section of the regulations and it[s] reference to cumulative impacts has no bearing on the lead federal agency's efforts to establish the scope of an undertaking subject to Section 106. The scope of an undertaking is established using the principles of NEPA and in particular, the principles of logical termini and independent utility codified in 23 CFR Part 771.111(f) [See NOTE 3 below for text] without any reference to effects. Moreover, the full citation for this reference is, "Adverse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative." Therefore, it is FHWA's position that using the cumulative effects of other projects outside of FHWA's jurisdiction to expand the scope of an undertaking subject to Section 106 is not consistent with NEPA or the purpose of this section of the Section 106 regulations. [See Note 4 below]
FHWA also takes issue with VDHR's conclusion that the McIntire Road Extension (a.k.a. Meadow Creek Parkway) [See NOTE 5 below] and the U.S. Route 250 Bypass interchange projects "may be interpreted as a reasonable consequence of the other". To arrive at this conclusion, one would need to argue that either the McIntire Road Extension is an indirect effect of the U.S. Route 250 Bypass interchange or the U.S. Route 250 Bypass interchange project is an indirect effect of the McIntire Road Extension. As we have explained on other projects, in order for another undertaking to be an indirect effect of FHWA's undertaking, their must be a cause and effect relationship. If a causal relationship exists, then FHWA is required under NEPA to include that additional undertaking in the scope of its undertaking. In FHWA's Interim Guidance: Questions and Answers Regarding Indirect and Cumulative Impact Considerations in the NEPA Process dated January 31, 2003, that causal relationship is described as a "but-for" relationship. [See Note 6 below] Applying that principle to our undertaking to determine whether the interchange causes the McIntire Road Extension, one would need to demonstrate that but for the interchange project, the McIntire Road Extension project would not exist, be needed or serve a purpose. In other words, one would need to demonstrate that the U.S. Route 250 Bypass interchange project creates the need for the McIntire Road Extension project. This argument not only falls apart on its face, it also falls apart given the history of the McIntire Road Extension, which has been developed since the early to mid-90s with an at grade intersection to serve a purpose established by the City of Charlottesville, Albemarle County, and VDOT. If for some reason the U.S. Route 250 Bypass interchange project were to be shelved or the funding was no longer available, it is reasonable to conclude that the McIntire Road Extension, at least the portion in Albemarle County, would go forward to construction. The Albemarle County portion of the McIntire Road Extension project is in the right-of-way acquisition phase with a construction advertisement date of June 2008. [See Note 7 below] As for the City portion of the McIntire Road Extension, it has been fully designed with an at-grade intersection, and VDOT has secured a temporary construction easement from the City consistent with this design. [See NOTE 8 below] It too has a construction advertisement date of June 2008. It remains to be seen whether or not VDOT will proceed with this contract for the City portion of the McIntire Road Extension if delays were to occur in the development of the interchange. The interchange project itself has an advertisement date of late 2009, and its construction is intended to be synchronized with the construction of the McIntire Road Extension project so as to minimize disruption to the public. To summarize, it is FHWA's position that the U.S. Route 250 Bypass interchange project does not cause the McIntire Road Extension and as such, is not a "reasonable consequence of the other".
Likewise, FHWA does not believe that the converse is true either. Namely that the U.S. Route 250 Bypass interchange is a "reasonable consequence" of the McIntire Road Extension project or that the McIntire Road Extension causes the U.S. Route 250 Bypass interchange project. In other words, but for the McIntire Road Extension project, the interchange would not be constructed because there would be no need for it, and it would not serve a purpose. This argument is tenuous and would be difficult to demonstrate since 80% of the traffic projected to use the U.S. Route 250 Bypass interchange project comes from existing roads while only 20% of the traffic would originate with the McIntire Road Extension project (based on traffic data provided in the Environmental Assessment). While the design of an interchange at this location will be influenced by a connection to the McIntire Road Extension project, the need for an interchange is primarily driven by the traffic from the existing road system. The conclusion that the McIntire Road Extension project does not create the need for the U.S. Route 250 Bypass interchange project is further confirmed by the consultant's analysis which shows that the existing intersection would function at level of service F in the design year if the McIntire Road Extension is not constructed, demonstrating that a need exists for an interchange apart from the McIntire Road Extension. [See NOTE 8 below]
The issue of whether one undertaking is an indirect effect or "reasonable consequence" of another undertaking is also closely tied to the NEPA concept of independent utility. These concepts speak to whether an undertaking is useable and represents a reasonable expenditure even if no additional transportation improvements are made; whether it can function and stand alone as an independent project and not cause unexpected consequences which require additional corrective action. Some use the "loaded gun" analogy to represent this relationship. In order for the loaded gun analogy to apply to our undertaking, one would need to demonstrate that the U.S. Route 250 Bypass interchange project points a loaded gun at the existing transportation system causing unexpected consequences, which required the construction of the McIntire Road Extension to address. For the same reasons cited above - the history of the McIntire Road Extension and the contribution of the McIntire Road Extension to the traffic that would use the U.S. Route 250 Bypass interchange - this is just not the case.
It would also be difficult to demonstrate that the McIntire Road Extension project would not function, be useable or serve a purpose apart from the U.S. Route 250 Bypass interchange. While the City of Charlottesville has granted a temporary construction easement to VDOT to construct the McIntire Road Extension through McIntire Park conditioned upon VDOT not constructing an at-grade intersection, political decisions like these do not factor into FHWA's determination regarding independent utility. Instead, determinations regarding independent utility are based on whether a proposed undertaking can function or operate on its own and is considered useable if no other improvements are made, not whether a proposed undertaking will function or operate on its own. The determination of whether a federally funded project can function and operate on its own is a NEPA determination and isn't necessarily influenced by the decisions made by others regarding how a project is actually constructed or how contracts are let. Therefore, while the interchange is being designed and is intended to be constructed to accommodate what FHWA considers to be a committed project by others, this design and proposed sequencing of construction has no bearing on FHWA's determination regarding independent utility. [See NOTE 9 below]
Some have pointed out that an at-grade intersection will function at level of service F if the McIntire Road Extension is constructed and that VDOT policy dictates that improvements be made to correct the operational deficiencies. In other words, the McIntire Road Extension itself does not have independent utility and points a loaded gun at the existing transportation network requiring the construction of an interchange to correct. Recognize that FHWA is only obligated and required to determine that its undertakings have independent utility and is not required to demonstrate that other undertakings outside of its jurisdiction have independent utility. Further, FHWA does not have the authority to extend federal concepts and requirements to separate state actions. Notwithstanding, we have looked at the issue. As explained above, the level of service at the existing intersection without the McIntire Road Extension will be level of service F, which is the same as the level of service at this location with the McIntire Road Extension. Therefore, while FHWA is not in a position to comment on the VDOT policy referenced by others, it would appear that the addition of the McIntire Road Extension project does not deteriorate the no-build condition sufficiently to cause VDOT to address those circumstances as part of their project.
FHWA belabors the point regarding indirect effects and independent utility for a reason. While another undertaking can certainly be an indirect effect of FHWA's undertaking (although, as documented above, FHWA does not consider the McIntire Road Extension to be an indirect effect of the U.S. Route 250 Bypass interchange), it becomes a moot point when making reference to and considering adverse effects in accordance with 36 CFR Part 800.5(a)(1). It becomes a moot point because FHWA, in fulfilling its responsibilities in accordance with 36 CFR Part 800.3(a), will have already determined whether other undertakings are an indirect effect of their own when establishing the scope of its undertaking in accordance with NEPA. Section 106 and in particular 36 CFR Part 800.5(a)(1) does not give cause for FHWA to establish a scope for its undertaking that is different from the scope established in accordance with NEPA. Once an undertaking is established, an area of potential effect (APE) can be developed for that specific undertaking based on the direct and indirect effects that are anticipated consistent with 36 CFR Part 800.16(d). Once the APE is established, adverse effects can be determined in accordance with 36 CFR Part 800.5(a)(1) "within the area of potential effect".
While FHWA is obligated to consider cumulative effects in accordance with 36 CFR Part 800.5(a)(1), those effects must be "caused by the undertaking" as the undertaking has been defined by the lead federal agency. Keep in mind that a cumulative effect in this context is the incremental effect of our undertaking when added to the effect of other reasonably foreseeable projects such as the McIntire Road Extension as well as the City of Charlottesville's update of the Master Plan for McIntire Park. FHWA will assume responsibility for the cumulative effects caused by its undertaking (i.e. the incremental effect) but not the cumulative effects of other projects outside of its jurisdiction. Further, 23 CFR Part 771.105(d) restricts the use of Federal funds for measures necessary to mitigate adverse impacts provided the impacts for which the mitigation is proposed actually results from the FHWA action. [See NOTE 10 below]
We hope this response helps VDHR to better understand how the Federal Highway Administration addresses its NEPA responsibilities in establishing the scope of its undertakings and in particular, the scope of the U.S. Route 250 Bypass interchange subject to Section 106. FHWA recognizes that the concepts involved in the project development process can be complex and as a result, there can be an occasional and respectful difference of opinion in the interpretation of federal law and regulations. Despite the difference of opinion though, we hope that we can work together to balance the needs and competing interests of those involved in a manner that all can benefit from. If you have any questions on FHWA's determination or position, do not hesitate to contact me at (804) 775-3338.
| || |
Edward S. Sundra
Environmental Specialist, Sr.
|cc:||Angela Tucker, City of Charlottesville |
Helen Ross, Rick Crofford, Christine Fainter, VDOT
Mary Ann Naber, FHWA
Eric Almquist & Owen Peery, RKK Engineers
Richard Collins, Peter Kleeman, Daniel Bluestone, Mary Howard, Collette Hall
NOTE 1: Text of 23 CFR 800.5(a)(1)
36 CFR 800.5 Assessment of adverse effects.
(a) Apply criteria of adverse effect. In consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to identified historic properties, the agency official shall apply the criteria of adverse effect to historic properties within the area of potential effects. The agency official shall consider any views concerning such effects which have been provided by consulting parties and the public.
(1) Criteria of adverse effect. An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. Consideration shall be given to all qualifying characteristics of a historic property, including those that may have been identified subsequent to the original evaluation of the property's eligibility for the National Register. Adverse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative.
NOTE 2: Federal Highway Administration Federal Preservation Officer Contact Information
Ms. MaryAnn Naber
Federal Preservation Officer
Office of Project Development and Environmental Review
Federal Highway Administration
1200 New Jersey Ave. SE
Washington, DC 20590
NOTE 3: Text of 23 CFR 771.111(f)
23 CFR Part 771 -- ENVIRONMENTAL IMPACT AND RELATED PROCEDURES Early coordination, public involvement, and project development.
Section 111 Early coordination, public involvement, and project development.
(f) In order to ensure meaningful evaluation of alternatives and to avoid commitments to transportation improvements before they are fully evaluated, the action evaluated in each EIS or finding of no significant impact (FONSI) shall:
1. Connect logical termini and be of sufficient length to address environmental matters on a broad scope;
2. Have independent utility or independent significance, i.e., be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made; and
3. Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.
NOTE 4: Guidance on Direct, Indirect and Cumulative Effects of a Federal Undertaking
Reference is made to FHWA guidance dated January 31, 2003. But this was provided as interim guidance. It appears current guidance has been posted that supersedes the interim guidance, but this guidance is clearly related to the NEPA process and does not reference the Section 106 process in any way. Section 106 impacts are to be coordinated with NEPA but the underlying statutes are independent. The only statement in the FHWA guidance concerning Section 106 is as follows:
The regulations implementing Section 106 of the National Historic Preservation Act (NHPA) require the consideration of indirect and cumulative impacts when applying the criteria of adverse effect on historic properties (36 CFR §800.5(a)(1)) and delineating the area of potential effects (APE) (36 CFR § 800.16(d)).
The issue of project scope addressed in the FHWA letter seems to be an issue unrelated to consideration of indirect and cumulative impacts of concern to VDHR.
FHWA includes in its guidance the following statement about indirect and cumulative impacts indicating that these issues are not related to NEPA, but in fact are covered by other legislation.
"Regulatory History of Indirect and Cumulative Impacts
Under NEPA, project sponsors are required to identify and avoid, minimize, or compensate for direct project impacts. While the NEPA legislation does not mention indirect or cumulative impacts, the Council on Environmental Quality (CEQ) established Federal agency responsibility for identifying, analyzing, and documenting direct, indirect, and cumulative impacts in its "Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act (40 CFR §§ 1500 - 1508)." CEQ regulations direct that the environmental consequences section of an Environmental Impact Statement or Environmental Assessment include a discussion of adverse impacts that cannot be avoided, including direct and indirect impacts.
Other statutory and regulatory mandates include indirect and/or cumulative impact requirements, including the Endangered Species Act, Section 404 of the Clean Water Act, Section 106 of the National Historic Preservation Act, and Executive Order 12898 on Environmental Justice."
NOTE 5: Uniqueness of McIntire Road Extended and Meadow Creek Parkway projects
McIntire Road Extended and the Meadow Creek Parkway are independent projects with different lead agencies - City of Charlottesville for McIntire Road Extended; Virginia Department of Transportation for Meadow Creek Parkway. It is both incorrect and confusing to combine these two independent projects into one or use interchangable names for these independent projects.
NOTE 6: Interim Guidance cited has been replaced by more recent guidance.
Current guidance on indirect and cumulative impacts is available that no longer uses this approach to evaluating these impacts. Current guidance is at http://www.environment.fhwa.dot.gov/guidebook/qaimpact.asp
Note 7: Irrelevance of Albemarle County's Meadow Creek Parkway project right-of-way acquisition to current discussion.
McIntire Road Extended has its termini at Route 250 Bypass and Melbourne Road and does not extend north of the proposed intersection at Melbourne Road. Right-of way decisions associated with the Meadow Creek Parkway project relate to a project considered totally independent of both McIntire Road Extended and the Route 250 Bypass Interchange at McIntire Road. Only if VDOT were to combine all three of these independent projects would this Section 106 discussion be relevant. Many argue that these projects or at least the Route 250 Bypass Interchange and McIntire Road Extended should be combined into one undertaking as they are both currently in preliminary engineering and are addressing overlapping parts of the park.
NOTE 8: FHWA overstates the current status of the McIntire Road project. The road is not fully designed as stated but is still in preliminary engineering. No stormwater management plan has yet been developed and it is not clear when this will be achieved. Also, the city of Charlottesville has not yet granted a construction easement to VDOT for construction of McIntire Road Extended. A resolution was passed by the City Council with conditions necessary to be met prior to granting such an easement. These conditional have not been met and no construction easement has been granted to VDOT.
Note 9: Relationship between Route 250 Bypass Interchange at McIntire Road and the McIntire Road Extended Projects
The FHWA argument appears to be based on information that appears not to be available to the public. I do not know of any documentation that supports justification of the interchange project as viable independent of the McIntire Road Extended project. In fact, I am unaware of any demonstration of the interchange having independent utility, clearly stated logical termini, or evidence that the interchange would be a reasonable expenditure of over $30 Million if the McIntire Road Extended project is not built. Without documentation of the statements made here, I do not find the conclusion that these projects are independent to be consistent with the NEPA requirements. Having the McIntire Road Extended project as the interchange project's no-build alternative further confuses the independence issue. In effect, this situation makes the interchange project no-build alternative become building a project that by city council resolution is not to be build without an interchange. This is an unsatisfactory set of alternatives on its face and requires restatement of the no-build alternative, or combining these projects into one project for analysis.
NOTE 10: FHWA states that "FHWA will assume responsibility for the cumulative effects caused by its undertaking (i.e. the incremental effect) but not the cumulative effects of other projects outside of its jurisdiction." But, this appears to be directly counter to FHWA guidance that defines cumulative impacts as follows:
"Cumulative impact" is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. - 40 CFR 1508.7